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Mraz v. D & E Counseling Center9/27/2002
JUDGMENT: Affirmed.
. This timely appeal comes for consideration upon the record in the trial court, the parties' briefs, and their oral argument before this court. Plaintiff-Appellant, Dawn Mraz as representative of the estate of Alex Zalovick, appeals the decision of the Mahoning County Court of Common Pleas granting the Civ.R. 12(C) motion for judgment on the pleadings of Defendant-Appellee, William Fitker. We are asked to decide whether R.C. 2305.51 is constitutional. However, we find we do not have subject matter jurisdiction to address the constitutionality of R.C. 2305.51 as Mraz has failed to serve the Attorney General with a copy of the complaint in accordance with R.C. 2721.12(A). Thus, we cannot address the substantive arguments within Mraz's sole assignment of error and affirm the trial court's decision.
. The decedent, Alex Zalovick was born on September 22, 2000, to Mraz. On December 18, 2000, Jaclyn Colon, a fourteen year old girl, threw the baby from a second story bedroom window and stabbed him fifty-six times after he hit the ground. Subsequently, Colon was charged with murder but was found incompetent to stand trial. Fitker had been Colon's psychiatrist prior to the events on December 18, 2000.
. Mraz was appointed the legal representative of her son's estate and filed a complaint against Fitker and other defendants, claiming wrongful death and negligence per se. Fitker answered that complaint and filed a Civ.R. 12(C) motion for judgment on the pleadings to which Mraz responded. Mraz then filed a motion for leave to file additional argument in further opposition of Fitker's motion and attached a memorandum in support of her motion wherein she argued R.C. 2305.51 is unconstitutional. Subsequently, the trial court granted Fitker's motion for judgment on the pleadings.
. We affirm the trial court's decision because we do not have subject matter jurisdiction to address the constitutionality of R.C. 2305.51. R.C. 2721.12(A) prevents the courts of the State of Ohio from determining the constitutional validity of a statute unless that issue is raised in the pleadings and those pleadings are served on the Attorney General. This law in place to ensure the Attorney General, an interested party every time the constitutionality of a law of this state is challenged, is given an opportunity to defend the constitutionality of the challenged statute. Mraz has not followed the dictates of R.C. 2721.12(A) and, therefore, this court is without jurisdictional authority to render judgment on this issue. As Mraz does not challenge the manner in which the trial court applied R.C. 2305.51, but merely challenges the constitutionality of that statute, her assignment of error must be found meritless and the judgment of the trial court must be affirmed.
. Mraz argues one assignment of error on appeal:
. "O.R.C. Section 5122.34 which provides qualified civil immunity for psychiatrists for the acts of their patients that harm or cause the death of third persons is unconstitutional in toto and the application of O.R.C. 2305.51 with regards to this issue, as utilized by the trial court, constitutes reversible error."
. R.C. 5122.34 provides psychiatrists with immunity except as provided in R.C. 2305.51. Although Mraz's assignment of error contends R.C. 5122.34 is unconstitutional, and R.C. 2305.51 is unconstitutional as applied, her real argument is that R.C. 2305.51 is unconstitutional. However, as Fitker points out, Mraz has failed to both plead the unconstitutionality of either statute in her complaint and to serve a copy of that complaint upon the Attorney General. Accordingly, Fitker contends this court does not have
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